To the editor:
Your publication recently printed an article discussing the Indiana State Bar Association’s objections to Indiana Senate Joint Resolution 16 (“ISBA fights legislation to end retention votes, ‘politicize’ appellate bench,” Indiana Lawyer, Jan. 28.) The bar association’s complaint about SJR 16, and the slant of the article, is that the resolution proposes to “strip” Hoosier voters of the power to retain Indiana appellate court judges and Supreme Court justices. I do not believe that complaint is well-founded.
First, anyone familiar with the system knows that the vaunted retention vote is a meaningless check on the judiciary. No higher court judge or justice has ever lost a retention vote. There are few campaigns or efforts to educate voters regarding the retention vote. Voters have no idea, and most, therefore, default to the retain option.
SJR 16 proposes to drop the inconsequential retention vote and replace it with nomination by the governor and confirmation by the Senate. While voters do not know the merits of the judges and justices in a retention vote, they do know the merits of the senators they vote for. Contrary to the arguments in the article, confirmation by the Senate puts more power in the hands of everyday Hoosiers. Under this model, Senate candidates’ views on the proper role of judges and justices would become part of the discussion in campaigns. Voters would elect their senators, at least in part, on where they stand, for instance, on originalist judges versus activist judges.
In addition, judges and justices would appear before the people in Senate confirmation hearings. They would be asked, for instance, whether they believe courts should be activist or textualist. Their answers would be weighed by senators, who are answerable to voters. Short of directly electing judges and justices, this would be the best way to ensure that higher courts reflect the ideological makeup of Hoosiers.
It is also argued that the system proposed by SJR 16 would “politicize” judicial positions. As if the process is not currently “politicized.” It all depends on your perspective, I suppose. Most of those familiar with the process know this: the Indiana State Bar Association, the Indiana Trial Lawyers Association and the governor are in control.
Having gone through the process of applying for a Supreme Court position, I quickly learned how “political” the process was. I was naive the first time, believing that one’s body of work would have significant impact upon the selection process. I didn’t get very far. Perhaps I was a poor candidate. I am aware of others eminently qualified who did not progress. The second time I reached out to several members of the selection committee and was told by one member, “Judge, this process is not as open as it would appear. If the governor’s people have not reached out to you to suggest you apply, there is minimal chance you will advance to the top tier.” I now know this to be an accurate statement.
To argue that the selection process of judges and justices is not political is to be naive or disingenuous. No matter what process is utilized, there has been and probably always will be politics involved. I do not believe the views of the trial lawyers, of which I was a member while I was in private practice, reflect the views of the average Hoosier. I argue the process proposed by SJR 16 injects democracy into the process — a worthy goal.
Finally, the separation of powers concerns are real, and they are shared by, I believe, a large and largely unheard swath of the trial-level judiciary. The judiciary is a co-equal branch of government, not a superior branch. The role of the judiciary should be to decide cases, not to make or enforce policy.
I write because the tone of the recent article was somewhat dismissive of the concerns raised by the author of the resolution. Her concerns are valid and I believe widespread. They are worthy of serious discussion, and I hope SJR 16 will be a catalyst for that discussion. Whether SJR 16 passes or not, I hope our judicial branch of government will be thoughtful and receptive to the issues raised.•
— Judge Larry W. Medlock,
Washington Circuit Court, Salem